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By Mary Ziegler | In 2022, the Court undid a constitutional right for the first time by declaring that the U.S. Constitution does not confer a right to abortion in the landmark decision Dobbs v. Jackson Women’s Health Organization. In a decision this week called United States v. Skrmetti, they’ve taken the next step, extending the logic of Dobbs and destabilizing much of the law on sex discrimination.
The majority in Skrmetti was careful to cite case law on sex discrimination and suggest that the law at issue, which banned gender-affirming care for transgender youth, simply raised different issues. But Skrmetti shows how fragile protections against sex discrimination have become without any explicit guarantee, like the Equal Rights Amendment.
Skrmetti involves one of the many laws banning gender-affirming care for trans minors that passed in 2023. A group of plaintiffs challenged the constitutionality of the law under the Equal Protection Clause shortly after it passed, relying on the 2020 case, Bostock v. Clayton County, which involved employment discrimination under the landmark Title VII of the Civil Rights Act of 1964.
Bostock reasoned that sex always factors into discrimination on the basis of sexual orientation or gender identity, and therefore discrimination based on sexual orientation or gender identity should be treated as sex discrimination and subject to elevated judicial scrutiny. The Skrmetti plaintiffs tried to make the same point.
A district court seemed persuaded and blocked the Tennessee law from being enforced as the case made its way through the courts, but the Sixth Circuit Court of Appeals reversed.
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